A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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July 2012

30 July 2012

The extradition case of Wikileaks capo Julian Assange (about which I previously blogged here and here) is becoming a fascinating exercise in something I emphasize for the students in my International Criminal Law course: transnational criminal matters are a continuing interplay between the legal and the political.

The background: Assange has earned himself the enmity of the US (among other states, it should be said) due to Wikileaks' release of an enormous amount of material, some of which was classified diplomatic and security communications. Sweden then sought custody of Assange for questioning related to two alleged sexual assaults during a trip to Stockholm. Assange has maintained that the sex was consensual, and that the Swedish inquiry was actually a ploy to get him onto Swedish territory and from there extradited to the U.S. to face "secret" indictments (possibly for conspiracy to commit espionage). He was arrested in London under a European Arrest Warrant issued by Sweden, and went through an extradition process where the latter argument fell on deaf ears, the UK Supreme Court denying him any recourse and ordering his surrender.

Just after that ruling, Assange sought asylum at the London embassy of Ecuador, whose president had earlier made remarks sympathetic towards Assange and Wikileaks (and, unsurprisingly, antagonistic towards the US). He has been living in the Ecuadorian embassy for the last five weeks, meeting with his lawyers and, presumably, watching the diplomatic wrangling play out between Ecuador, the UK and Sweden.

1) Ecuador has effectively granted Assange asylum, at least to the extent that it seems willing protect him until the "problem" is solved. Ecuador's senior legal adviser is quoted in the story as calling the potential re-extradition of Assange to the U.S. an "evil," so I guess we know where they stand.

2) on July 24, the Washington Post reported that Wikileaks and Assange had hired former crusading Spanish magistrate Baltasar Garzon to act for them, and specifically to advise on Assange's current situation. This is an extremely astute PR move -- Garzon has a great deal of international credibility, stemming most prominently from his having been the initiator of the extradition request that led to the UK House of Lords' decision regarding the extradition of Augusto Pinochet, an international criminal law high water mark if ever there was one.

3) on July 25, "Ecuador formally offered the Swedish prosecutor the opportunity to interview Assange inside the London embassy. Sweden ha[s] not responded to the proposal." This is another extremely astute move. Recall that Assange has not been charged in Sweden, and the Swedish prosecutor has been clear that he is simply being sought for questioning at this point (which is permissible under the European Arrest Warrant system). Earlier, Assange had volunteered to submit to questioning via video-conferencing, which the Swedish prosecutor rebuffed. This recent offer ups the ante somewhat, as the moving force behind the entire dispute has been Assange's suspicion that Sweden simply wants to get him into their territory so that they can re-extradite him to the US. To my knowledge, Sweden has not confirmed or denied this allegation, but if all they want him for is questioning, then doing it inside the Ecuadorian embassy should suffice. Of course, it's not quite that simple -- the Swedes are likely to want the Ecuadorians to consent to the Swedish law regarding questioning of a suspect being applied during the interview (a reasonable request), and it's possible that the British government might have to consent as well. Still, these don't seem like insurmountable barriers, and if the Swedish government rejects this offer, it will add credibility to the suspicion regarding a secret deal with the Americans.

4) the "senior legal advisor" has invoked the concept of "specialty." Under nearly all extradition treaties (and under the EAW), the requesting state is generally forced to agree that it will only try the individual regarding the crimes for which they were extradited by the requested state -- that is, the requesting state has an obligation to refrain from prosecuting on any other crime than that agreed to via the particular extradition request. Specialty is something of a hold-over from older extradition practice, but it's very interesting that it has emerged here. The Ecuadorians have asked the UK Home Secretary, Theresa May, whether she intends to waive specialty in this case, which is a prerogative of the requested state's government. The Foreign Office has not responded on May's behalf as of yet. It appears that part of Ecuador's plan to protect Assange will be to extract such a promise from the UK government as part of any deal to allow Assange to be sent to Sweden. Of course, if the UK and US governments are talking in the background, the latter has likely asked the former to waive specialty.

5) the UK Foreign Office has released a statement about the case, which is quoted in the Guardian story. The Foreign Office rather condescendingly indicates that it has explained to the government of Ecuador that the UK owes a binding obligation to Sweden to extradite Assange pursuant to the EAW, and notes that UK extradition law is replete with all the necessary human rights protections...so, essentially, they have nothing to worry about and should stop interfering. This is a bit disingenuous, in my view, because it simply doesn't address the re-extradition problem. Part of the argument would be that Swedish extradition law would ultimately be governed by the standards set by the European Court of Human Rights, and thus Sweden couldn't extradite Assange to face the death penalty in any event. However, this doesn't mean that he would not face a sentence of life without parole (regarding which, see below). On the other hand, this does give a reminder of the big stick that the UK holds in the background here -- they do have an obligation to surrender Assange to Sweden, and if he steps foot outside the Ecuadorian embassy, they will be within their rights to arrest him and put him on a plane.

6) someone identified as a "political advisor" to the Ecuadorian government is quoted in the story as expressing "deep concern" about the prospect of Assange facing the death penalty if extradited to the US, and also that Ecuador views a sentence of life without parole as "equally inhumane" to the death penalty. In international law methodology terms, we call that evidence of "opinio juris," the expression that a particular state practice (i.e. refraining from extraditing someone to face the death penalty or life without parole) is actually required under the law. While this is not as clear an expression of opinio juris as one might like, the use of the word "inhumane" does a fair bit of work, as this is a legal term of art in this area -- to wit, pursuant to the UN Torture Convention, states cannot extradite or refoule an individual to another state where they would face "inhumane treatment." The issue of whether states can lawfully extradite individuals to face life without parole is a hot one these days, and has been the subject of recent decisions from the European Court of Human Rights and the Quebec Court of Appeal.

7) final issue: as a matter of international law, does the US have any jurisdiction over Assange's alleged crimes to begin with? There has been no public indictment as of yet, so we can only speculate. Obviously, anything Assange did to attract US attention was not done on US territory. The most that can be offered is that states are permitted to exercise extraterritorial jurisdiction over crimes that attack the state's vital interests (such as espionage), pursuant to the protective principle of jurisdiction. We'll have to await some actual indication of what, if anything, Assange is charged with to assess whether there is any jurisdictional overreach.

In any event, this case is getting more interesting by the week, and is worth watching.

Many thanks to law student Jennifer Groenewold for alerting me to the recent developments.

19 July 2012

ICC Prosecutor Fatou Bensouda has announced that the government of Mali has referred to the Court the situation within its own country, starting in January 2012. This is the fourth self-referral by a state party to the Court. Coverage here.

16 July 2012

I commend to your attention a new article on the pressing and novel issue of cyber-warfare, which is on the front of the radar for a large portion of the international military and security community. "International and Canadian Law Rules Applicable to Cyber Attacks by State and Non-State Actors" by Matthew Castel (Vol. 10(1) of the Canadian Journal of Law & Technology, pp. 89-120) is probably the first significant article on the topic in the Canadian legal literature, and certainly one that covers with great aplomb a broad variety of issues related to this timely topic.

10 July 2012

The International Criminal Court has sentenced Thomas Lubanga to 14 years in prison, after his recent conviction for conscription of child soldiers during the conflict in the Kivu provinces of eastern Democratic Republic of Congo.